No. 36653-3-II.The Court of Appeals of Washington, Division Two.
May 13, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 06-8-00022-7, Craddock D. Verser, J., entered August 14, 2007.
Affirmed
by unpublished opinion per Hunt, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
HUNT, J.
The State of Washington appeals the juvenile court’s dismissal of misdemeanor possession of marijuana charges against K.C.S. O’Meara, a juvenile, arguing that the juvenile court erred when it granted O’Meara’s CrR 3.6 motion to suppress marijuana officers found when they searched his backpack. The State contends that (1) the search was lawful, incident to the arrest of another person; (2) the juvenile court erred when it concluded that the officers could not have obtained a warrant allowing them to search the backpack; and (3) the juvenile court erred when it found that O’Meara’s consent to the search was not voluntary. We affirm.
Facts
I. Background
On May 13, 2006, Port Townsend Police officers arrested Anthony Maple at the local skate park after learning from Christopher Gilmore, [1]
that he had purchased marijuana from Maple at the park. When the officers first contacted Maple, he was sitting on a wall; there were three red backpacks near his feet.
After arresting Maple for selling marijuana to Gilmore, the officers asked Maple which backpack belonged to him; Maple responded that he owned one of the red backpacks. Rather than ask Maple to be more specific, the officers seized all three backpacks and placed them in a patrol car. At that point, O’Meara and another youth, Justin Welder, approached the officers and attempted to claim two of the backpacks. The officers told them that they would address who owned which backpack at the nearby police station.[2]
At the police station, O’Meara and Welder again identified their backpacks, but the officers refused to return them. Instead, the officers told O’Meara and Welder that (1) either they needed to consent to a search of their backpacks or the officers would obtain search warrants; and (2) in either case, the officers would not release their backpacks until they had searched them.[3] Despite O’Meara’s multiple requests, the officers refused to retrieve his cell phone from his backpack and refused to return his backpack to him. Eventually, O’Meara “consented” to the search, and the officers found marijuana in O’Meara’s backpack.
II. Procedure
The State charged O’Meara with unlawful possession of 40 grams of less of marijuana in juvenile court.
O’Meara moved to suppress the marijuana under CrR 3.6. He argued that the officers had seized his backpack unlawfully. The State responded that (1) the officers had lawfully seized the backpack; (2) O’Meara had no privacy interest in the backpack because he left the backpack in the possession of a third party on a public street; and (3) O’Meara had consented to the search.
On August 24, 2006, the juvenile court held an evidentiary hearing.[4]
Following the hearing, the juvenile court ordered additional briefing on the issues of whether O’Meara was seized when the officers took possession of his backpack and whether the officers vitiated O’Meara’s later consent by telling him that they would obtain a search warrant if he refused to consent to the search. The State argued that (1) the officers lawfully took possession of O’Meara’s backpack, (2) O’Meara freely and voluntarily went to the police station to claim his backpack, and (3) his consent was voluntary, not coerced. O’Meara argued that (1) once the officers took control of his property and refused to return it to him unless he claimed it at the police station, he was seized; and (2) because the officers then refused to return his backpack to him until they had searched it, his consent to search was not voluntary.
After considering the additional briefing; the juvenile court granted O’Meara’s suppression motion, and issued the following written findings of fact and conclusions of law:
I. FINDINGS OF FACT
1. On May 13, 2006, Anthony Maple was arrested by Port Townsend Police officers at the Port Townsend skate board park. Upon being contacted, Maple was observed to be sitting on a wall with three red knap sacks in the area of his feet.
2. Upon being arrested, Anthony Maple was questioned regarding which backpack belonged to him. Anthony Maple acknowledged that he owned one of the red backpacks.
3. Officers Polizi and Green seized all three backpacks instead of asking which particular red backpack belonged to Anthony Maple. All three backpacks were placed into a patrol car. K.C. O’Meara and Justin Welder then approached the officers, attempting to claim their red backpacks.
4. K.C. O’Meara said, “You have my backpack.” The police officers told him that they would sort out the question of who owned which backpack at the station.
5. At the police station, K.C. O’Meara and Justin Welder identified their backpacks. At that point, the officers knew which backpack belonged to whom.
6. K.C. O’Meara and Justin Welder were then told that their backpacks would be searched, either through the service of a search warrant or upon their consent.
7. K.C. O’Meara asked for the cell phone from his backpack. His request was refused.
8. K.C. O’Meara made multiple requests for the return of his backpack.
II. CONCLUSIONS OF LAW
1. The seizure of K.C. O’Meara’s backpack occurred at the time law enforcement retained possession of it over K.C. O’Meara’s objection.
2. Law enforcement had no right to retain possession of K.C. O’Meara’s backpack once they determined that it belonged to K.C. O’Meara, who at that point was not suspected of committing a crime.
3. At that point there existed no specific, articulable facts to believe that Anthony Maple had placed marijuana in K.C. O’Mear[a]’s backpack.
4. Once ownership of K.C. O’Meara’s backpack was determined, law enforcement had no right to search that backpack.
5. There were no grounds for obtaining a search warrant on these facts.
6. The threat to obtain a search warrant on these facts invalidated any consent.
7. K.C. O’Meara’s multiple requests for the return of his backpack, and law enforcement’s subsequent denials of each request, invalidated any consent.
8. Evidence gathered subsequent to law enforcement’s seizure of K.C. O’Meara’s backpack incident to the arrest of another individual must be suppressed.
Clerk’s Papers (CP) at 24-26.
On August 14, 2007, the trial court entered an order dismissing the case.
The State appeals.
ANALYSIS
The State argues that the juvenile court erred in granting O’Meara’s CrR 3.6 motion to suppress and in dismissing the charges against him. We disagree.
Absent an exception to the warrant requirement, a warrantless search is impermissible under both article 1, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution See State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). Evidence seized during an illegal search must be suppressed under the exclusionary rule as “fruit of the poisonous tree.” State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999) (citing State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986)).
I. Standard of Review
We review the juvenile court’s ruling on a CrR 3.6 motion to suppress to determine whether substantial evidence supports the challenged factual findings and, if so, whether the findings support the conclusions of law. State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997). We review the juvenile court’s conclusions of law de novo. Johnson, 128 Wn.2d at 443 (citing State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712
(1995)). We review only those findings of fact to which error has been assigned; unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
II. Not a Lawful Search Incident to Maple’s Arrest
The State first contends that the juvenile court erred when it concluded that the officers had no right to search O’Meara’s backpack, arguing that the search was a lawful search incident to Maple’s arrest. This argument fails.
A search incident to arrest is a well-recognized exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001) (citing Johnson, 128 Wn.2d at 446-47). This exception promotes officer safety and prevents the destruction of evidence. Vrieling, 144 Wn.2d at 494. In order to ensure that a search incident to arrest does not go beyond its intended purposes, [5]
however, such a search is limited to the area within the arrestee’s immediate control and it must occur roughly contemporaneously with the arrest. State v. Fladebo, 113 Wn.2d 388, 396-97, 779 P.2d 707 (1989) (citing United States v. Vasey, 834 F.2d 782, 786-87 (9th Cir. 1987)) see also United States v. Tank, 200 F.3d 627, 631 (9th Cir. 2000). Although officers may conduct a contemporaneous warrantless search shortly after they have removed the arrestee from the immediate area, the arrest and search should not be separated in time or by intervening acts. See State v. Smith, 119 Wn.2d 675, 683-84, 835 P.2d 1025 (1992) see also United States v. McLaughlin, 170 F.3d 889, 893 (9th Cir. 1999).
Citing Smith, 119 Wn.2d 675, and United States v. Porter, 738 F.2d 622 cert. denied, 469 U.S. 983 (4th Cir. 1984), the State argues that (1) the facts do not show a significant lapse of time between Maple’s arrest and the search of O’Meara’s backpack, and (2) there were no intervening events that affected the reasonableness of the search. We agree with the State, as did the appellate court in Porter, that if the searched property is within the exclusive control of a law enforcement official a search warrant is not necessarily required in order to perform a search incident to arrest. Porter, 738 F.2d at 627 (citing New York v. Belton, 453 U.S. 454, 461-62 n. 5, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)). Nevertheless, these cases are inapposite.
In Porter, the arrest and the search of Porter’s property occurred while she and her searched property were fully within the law enforcement officer’s control inside a Federal Drug Enforcement Administration office. But unlike the facts in O’Meara’s case, Porter’s search took place immediately after her own arrest and in the same location as the arrest. Porter, 738 F.2d at 624. In contrast here there were intervening events clearly not present in Porter: For example, the law enforcement officers initially arrested only Maples, not O’Meara at the scene. They removed O’Meara and Welder’s backpacks from the scene of Maple’s arrest and took the backpacks to the police station before searching them.
The facts of Smith similarly differ from the facts here: An officer searched Smith’s fanny pack at the arrest scene approximately nine to seventeen minutes after handcuffing and placing him in the back of a police car. Smith, 119 Wn.2d at 683. Our Supreme Court held that the delay and the officer’s intervening actions were reasonable and necessary to secure the premises and to protect the officer and the public; therefore, the search was not improper. Smith, 119 Wn.2d at 683-84.
Here, in contrast, regardless of the length of the delay between Maple’s arrest and the search of O’Meara’s backpack, at the police station there was no longer any risk to the officers or the public and no risk of anyone potentially destroying any evidence in the backpacks.[6]
Furthermore, the officers engaged in intervening acts that made any search of O’Meara’s backpack incident to Maple’s arrest unreasonable: The officers transported the backpacks from the scene of Maple’s arrest to the police station, some distance away. Then the officers waited to search the backpacks until after they knew which young man owned which backpack. After learning which backpack belonged to O’Meara, they and pressed him for consent to search.[7]
We hold, therefore, that the State has not shown that the search of O’Meara’s backpack was a lawful search incident to Maple’s arrest; nor has the State persuaded us that the trial court erred in suppressing the evidence seized during this unlawful search.
III. Conclusion of Law 5: No Grounds for Obtaining a Search Warrant
The State next challenges the juvenile court’s conclusion of law 5, which states that there were no grounds for obtaining a warrant to search O’Meara’s backpack. The State argues that this conclusion was incorrect because the officers “had probable cause to obtain a warrant if desired based on the marijuana found on Gilmore, the statement of Gilmore that he bought it from Maple, and Maple being in control of the backpack when arrested.” Br. of Appellant at 7. Again, we disagree.[8]
The Fourth Amendment to the United States Constitution provides that search warrants may be issued only upon a showing of “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched.” State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004) (citing State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)) (emphasis added). “It is only the probability of criminal activity, not a prima facie showing of it, that governs probable cause.” Maddox, 152 Wn.2d at 505.
Once the officers determined that the backpack belonged to O’Meara rather than to Maple, the only evidence linking Maple to O’Meara’s backpack was Maple’s earlier proximity to the backpack when the police had initially contacted him in the skate park. There were no facts suggesting that (1) Maple was storing drugs in other people’s backpacks, (2) Maple and O’Meara knew each other, or (3) O’Meara was linked to any drug activity whatsoever. The only connection between O’Meara and Maple was that Maple had been near O’Meara’s backpack at the skate park.
We hold that the sole connection between Maple and O’Meara or O’Meara’s backpack, namely Maple’s initial proximity to the backpack, was too tenuous to establish a reasonable inference that the officers would find drugs in O’Meara’s backpack. Accordingly, we affirm the juvenile court’s conclusion that the facts would not have been sufficient to obtain a search warrant.
IV. Vitiated Consent
Finally, the State argues that the juvenile court erred when it concluded that the officers’ threat to obtain a search warrant vitiated O’Meara’s consent. We again disagree.
Another exception to the warrant requirement is consent to search State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998) (citing State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989)). For consent to be valid, the State must prove that (1) it was voluntary, (2) the person consenting had the authority to consent, and (3) the search did not exceed the scope of the consent. Walker, 136 Wn.2d at 682 (citing State v. Nedergard, 51 Wn. App. 304, 308, 753 P.2d 526, review denied, 111 Wn.2d 1007 (1988)). The only factor at issue here is whether the juvenile court properly concluded that O’Meara’s consent was not voluntary.
When evaluating whether a defendant’s consent was voluntary or whether it was a product of coercion, we examine the totality of the circumstances surrounding the defendant’s consent. State v. O’Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003) (citations omitted). In so doing, we consider whether: (1) the defendant was advised of his Miranda[9]
rights; (2) the defendant was advised that he had a right to withhold his consent; (3) the defendant gave his consent “`only in submission to a claim of lawful authority'”; and (4) the officers repeatedly requested consent despite the defendant’s continued refusal. O’Neill, 148 Wn.2d at 588-89 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)) (emphasis omitted). We may also consider (1) whether the officers advised the defendant that, in the absence of his consent, they would be required to obtain a search warrant, thus merely advising the defendant of the consequences of refusal; or (2) whether they pressured the defendant into consenting by repeatedly asserting that his refusal to consent was futile. See O’Neill, 148 Wn.2d at 588 (citations omitted). And we may consider these facts in light of (1) the defendant’s degree of education and intelligence, (2) the extent to which the defendant was restrained when he gave consent, (3) any prior illegal police action, and (4) any police deception as to their purpose. O’Neill, 148 Wn.2d at 588-89. These factors are not exclusive. O’Neill, 148 Wn.2d at 589.
Here, we hold that the totality of the circumstances support the juvenile court’s conclusion that O’Meara’s consent to the officers’ search of his backpack was not voluntary. First, although nothing in the juvenile court’s findings of fact, or the record, indicate O’Meara’s degree of education and intelligence, it is clear the officers were dealing with a minor, see CP at 1 (DOB is 5/6/1991; matter brought in the juvenile division of superior court). Second, although O’Meara was not physically restrained when he gave his consent, he would have had to abandon his property if he refused to consent to the search. Third, despite his repeated refusal, the officers continued to ask O’Meara to consent to the search. Fourth, the officers refused to honor O’Meara’s request for access to his cellular telephone inside his backpack. And fifth, although O’Meara was arguably aware of his right to withhold his consent, based on his attempt to do so, the officers told him that if he refused consent, they would hold his property and obtain a search warrant, which, as we have already concluded, would likely have been futile. Taken as a whole, these facts support the juvenile court’s conclusion that O’Meara’s consent was given under coercive circumstances. Therefore, O’Meara’s involuntary consent did not provide an exception to the search warrant requirement.
Holding that the State does not show that the juvenile court erroneously granted O’Meara’s suppression motion, we affirm the juvenile court’s denial of that motion and its subsequent dismissal of the charges.[10]
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J. and PENOYAR, J., concur.
(1986).
(1966).